CONDO CONVERSATIONS

How Fair Housing can affect your association

JENNIFER IRELAND

Condominium and homeowners associations have had discrimination charges filed, or threatened to be filed, against them for violations of the Fair Housing Act.

The consequences of discrimination can be harsh. Therefore, it is very important for an association to be able to identify and understand ways they might discriminate and to take the necessary steps to prevent such claims from happening.

Common interest community associations must first understand what the Fair Housing Act is. The FHA, also known as Title VIII of the Civil Rights Act of 1968, was passed in 1968 to prohibit discrimination based on race, color, religion and national origin. In 1974, discrimination based on sex was added. In 1988, it was amended and changed to include discrimination against familial status and those with disabilities.

Virginia’s Fair Housing law takes it a step further, adding elderliness (individuals age 55 or older) as a protected category.

A major reason for the implementation of the FHA in 1968 was racially restrictive covenants that were being used as tools of discrimination to prevent the migration of people of color into certain neighborhoods during the first half of the 20th century.

However, racially restrictive covenants remain common features of deeds. Since covenants run with the land, they become part of the land title in continuance. Also, the process to remove covenants is expensive and time-consuming. The majority of owners are not even aware that their properties are subject to racially restrictive covenants.

Discrimination based on religion can result when an association does not allow a religious group to utilize a community chapel facility, but allows other religious groups.

Familial status includes the following: someone with one or more children younger than 18; a pregnant woman, someone who has custody or guardianship of a child, someone in the process of adopting a child, and/or foster parents. The most common way associations discriminate based on familial status is to deny children equal use of a common area element through a rule or regulation.

Over more than a decade, courts have applied the Act to association pool rules. Restrictions on children’s use of swimming pools, such as “Adult Only Swim Time,” where the same restrictions do not apply to adult residents, are a discrimination under the Act. This discriminates against families with children by denying them equal access to the community pool.

Senior and retirement communities for individuals older than 55 or 62 may lawfully refuse to rent to families with children. The Housing for Older Persons Act communities are those intended for occupancy by persons ages 55 or older, and at least 80% of units occupied by persons 55-plus.

Discrimination based on disability can take on many forms. Associations cannot refuse to allow reasonable modifications to a dwelling, or refuse reasonable accommodations in their rules and regulations, policies, and services to allow individuals with disabilities an equal opportunity to use and enjoy their dwelling or common area elements. These can include structural changes, such as the installation of a ramp into a building, or grab bars in a bathroom, or allowing for a tenant to transfer to a ground-floor unit.

In recent years, requests have been made to associations for service animals and comfort support animals, even when there are restrictions on pets in the community. What is an association to do when such requests are received?

First, the board must understand the difference between a “service” animal and an “emotional support” animal. A service animal, such as a guide dog, is trained to do a specific task. Not even a condominium can prohibit such an animal because the owner must rely on it everywhere. They are not considered pets.

According to the Humane Society, an emotional support animal “does not need to be trained to perform a service. The emotional and/or physical benefits from the animal living in the home are what qualify the animal as an assistance animal.” The Fair Housing Act requires the housing provider, including condominiums, to make “reasonable accommodations” to a request for such an animal. Typically the owner provides a letter from either a doctor or therapist stating the disability and the need for the comfort the animal will provide.

Discrimination by an association usually does not take place by direct discrimination, but when enforcing a rule or restriction that has the effect of discrimination against individuals in one or more of the protected categories. Often times, association boards are surprised when faced with a discrimination complaint, especially when they can show that they have strictly enforced the terms of its governing documents. But liability is sometimes found for that very reason.

What steps can associations take to avoid FHA liability?

Review rules, regulations, and restrictions for any discriminatory language.

For example, instead of stating, “Children may not skate or ride bike in common areas,” it should state, “Persons may not skate or ride bike in common areas.”

Establish neutral criteria for fees or fee waivers for all services and facilities. Also, establish neutral criteria for the use of those services and facilities.

Ensure that enforcement of your covenants is in a consistent manner. Associations have an obligation to enforce the rules consistently and fairly, for the good of the community.

Finally, consult with an attorney. The law related to housing discrimination is complicated, and the facts of each case are unique. Real estate or civil rights lawyers have the training and education to better serve an association if faced with a discrimination violation.

Jennifer Ireland is a Realtor with Berkshire Hathaway HomeServices Towne Realty and co-chair of the Hampton Roads Realtors Association’s Common Interest Community Forum. Have a question about a condo or common interest community topic? Email svegh@hrra.com. For more on HRRA, go to www.hrra.com, or call 757-473-9700. This column is not legal advice nor a legal recommendation.